JUDGMENT:

S.B. Sinha, J.

1. Appellants herein were tried under Section 302 of the Indian Penal Code for committing murder of one Shrishail Shivappa Jagadale.

2. The occurrence took place at about 8.30 pm on 28.5.1994. A First Information Report was lodged by Nimbewwa, sister of the deceased Shrishail Shivappa Jagadale at about 10.00 am on 29.5.1994, inter alia, alleging that the appellants were inimically disposed of towards her brother and his family.

2.1. was furthermore alleged that on the fateful day, when she, her mother, Mannandevva, father Shivappa, younger brother Basappa, his wife, Gurubai, elder brothers wife Maadevi were sitting in front of their house and her elder brother (deceased Shreeshaila) was sitting on a katte (platform) below a Neem tree, the accused persons, who were 11 in number, forming an unlawful assembly armed with axe and Jambiya in their hands came there. Accused No.1, Ningondeppa Master, shouted, "see that he is sitting there on the platform, son pull that Shreeshaila", whereupon Accused No. 11, Malakaji, pulled him up from his feet and threw him on the ground. Accused No. 11, Malakaji who had been holding an axe then assaulted Shreeshaila on his head.

2.2. He fell down shouting "satteppo" (died) whereafter Accused No. 11, Malakaji, and others assaulted the deceased with axe and jambiya on his neck, chest, etc.

2.3. The deceased sustained grievous injuries. When the family members of the deceased came to his rescue, the accused allegedly threatened them. They also told Basappa, the younger brother, and Shivappa, the father of the deceased, that they would also finish them whereupon they ran away from the village to a jungle.

3. It was alleged that the informant and her sister being women did not dare come to the Police Station in the night apprehending that the accused might also assault them. She came to the Police Station with her elder sister Shantavva and lodged the First Information Report.

4. Before the learned Trial Judge, a large number of witnesses were examined on behalf of the prosecution.

4.1. Pw-9 is the father, PW-10 is the brother, PW-11 is the complainant- informant, PW-1 is another sister, PW-13 is the wife and PW-21 is the niece of the deceased.

4.2. Apart from the family members, eight others were cited as witnesses in the charge-sheet. CW-1 and CW-3 were not examined. Six villagers who were examined by the prosecution, however, did not support the prosecution case.

4.3. It is not in dispute that Accused No.1 Ningondeppa, Accused No.2, Shivashankar and Accused No.3, Shivappa, are dead.

4.4. The learned Trial Judge by reason of his judgment and order dated 07.05.1999 gave benefit of doubt to the accused persons, inter alia, holding :

(1) Having regard to the ocular evidence, vis-`-vis the medical evidence, it is doubtful as to whether the prosecution has come out with correct version in regard to the time of death;

(2) As the male eye-witnesses, who were members of the same family namely PW-9 and PW-10, fled away from the place of occurrence and did not return during night and only PW-11 and PW-12 having come to the Police Station for lodging the First Information Report only at about 10 a.m. on the next day, they cannot be relied upon.

(3) Prosecution witnesses made improvements in their statements in court, vis-`-vis these were statements made in terms of Section 161 of the Code of Criminal Procedure and on that ground too their testimonies should not be relied upon.

5. All the witnesses who supported the prosecution case are related to the deceased. Specific overt acts have been attributed by the prosecution witnesses only against Accused No.1, Ningondeppa, as against Accused No.2, Shivashankar, Accused No.3, Shivappa, Accused No.5 Shekappa and Accused No. 11, Malakaji, but they made general statements with regard to the purported overt acts having been committed by all the accused.

6. The High Court, on the appeal preferred by the State against the judgment of acquittal, howe